Legal Standing of Testimonium De Auditu on Child Sex Crime

Abstract

This study discussed the legal standing of testimonium de auditu / hearsay evidence on child sex crime; a case study in the Decision of High Court Number: 45.PID.SUS/2018/PT.PDG. This study was analyzed through criminal law evidentiary theory and legal certainty theory. Then, it employed a normative juridical method which is supported by interviews with law enforcement officials relating to the cases raised in this paper. The results and analysis of this paper found that the Decision of the Constitutional Court Number: 65/PUU-VIII/2010 does not set limits on the receipt of testimonium de auditu. The Decision of the Constitutional Court does not specifically address testimonium de auditu witness, but it is one of the types of witnesses being debated. Based on the Decision of the Constitutional Court, testimonium de auditu witness can be accepted as evidence as long as it has relevance to the case being tried and other evidences. This “relevance” phrase is debated because there is no limit for the judge in determining the relevance. Thus, determining its relevance requires the judge’s shrewdness and intelligence in analyzing the case. However, based on the Decision of the Constitutional Court Number: 45.PID.SUS/2018/PT.PDG, the legal standing of testimonium de auditu / hearsay evidence is not recognized. Thus, the decision overturned the decision of the court of first instance. According to the author, the High Court judge was wrong in applying the evidentiary theory. In this case, the the High Court judge made the decision only based on the Positive Law (Positief Wettelijk Bewijs Theorie). This is contrary to the Indonesian criminal law evidentiary theory which adheres to the principle of Negatief Wettelijk Bewijs Theorie. In addition, the Decision of the Constitutional Court Number: 65/PUU-VIII/2010 has not provided legal certainty in determining whether or not testimonium de auditu witness can be used as evidence.